First Amendment Right to Post Videos of One's Disability-Claim Medical Examination

From yesterday's opinion in Ten Injured Workers v. State (Wash. Ct. App.), written by Chief Judge Lori Smith, joined by Judges Stephen Dwyer and Leonard Feldman; I'm not sure the analysis is quite right, but the result seems correct:

In 2023, the legislature amended RCW 51.36.070 to allow injured workers to audio and video record their independent medical examinations (IMEs) [conducted for purposes of disability pay claims -EV]. However, subsection (4)(g) of the statute forbids workers from posting a recorded IME to social media….

As the United States Supreme Court recently noted, one of the most important places for the exchange of views in our modern society is "cyberspace—the 'vast democratic forums of the Internet' in general, and social media in particular." "Social media offers 'relatively unlimited, low-cost capacity for communications of all kinds'" and allows users to "engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.'"

It is well-established that online posts may constitute speech or expressive conduct. Thus, posts on social media expressing varying views and opinions can be protected forms of speech. But determining whether an online post is speech or conduct presents a complex question, dependent on the context, content, and, at times, the speaker at issue.

In the present case, the context and speakers at issue weigh heavily in favor of categorizing the act of posting a recorded IME to social media as expressive conduct. The Internet, and social media in particular, is the "modern public square," and is, for many, "the principal source[ ] for knowing current events, checking ads for employment, speaking and listening, … and otherwise exploring the vast realms of human thought and knowledge." Social media sites provide "perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard." Commenting on, reposting, or liking a user's post can communicate either an approval or disagreement with the original user's posting….

Further, given the nature of a worker's compensation claim, the context of why a worker may choose to record or post an IME to social media also supports a conclusion that such a post is expressive conduct. The legislature passed RCW 51.36.070 with the goal of protecting injured workers during an innately adversarial process. When the legislature considered Substitute House Bill 1068, public testimony in favor of the bill highlighted the need for transparency during IMEs. Allowing workers to record their IMEs neutralizes the power imbalance between injured workers and doctors, provides workers with a mechanism of disputing diagnoses or care they may not agree with, and incentivizes providers to offer quality care. It stands to reason that workers who choose to share their recorded IME with others, in the midst of an adversarial process, do so with the obvious intent of communicating either displeasure or agreement with the treatment they received.

It is clear that the act of posting a recorded IME to social media is expressive conduct warranting free speech protections. By posting an IME to social media, injured workers intend to convey a particularized message about their worker's compensation claim or about the IME provider. Given that the videos would be posted to social media, a platform for sharing ideas and communicating with others, the likelihood that the worker's message is understood by those who view the video is especially great….

RCW 51.36.070(4)(g) is … a prior restraint…. The subsection states: "The worker may not post the recording to social media." And under RCW 51.48.080, failure to comply with the statute results in a penalty of up to $1,000…. [S]ubsection (4)(g) forecloses any opportunity for injured workers to share their recorded IMEs to social media. This blanket prohibition is a hallmark of a prior restraint….

Thanks to Mark S. Leen for the pointer.